NOTE
Access of land-locked states and
their interests in the seabed area
Adv Vulani Baloyi, Lecturer, Department
of Academic Planning and Research, Uni
versity of the Western Cape
1 Introduction
The deep seabed beyond national jur
isdiction will be the last frontier on earth
to be exploited by humankind.1 Access
to the seabed area and its resources, a
right open to all states, depends on a
satisfactory solution to the problem of
secure transit and enjoyment of facilities
within the transit states.2 The interests
of land locked and geographically dis
advantaged states in the seabed area are
therefore linked to a satisfactory regime
that would allow them secure transit
and access.3 Land locked and geogra
phically disadvantaged states maintain
that they will benefit from seabed
mining in furthering their own econom
ic development. The interests of the
land locked and geographically disad
vantaged states in the seabed area
extend to a supply of minerals, com
bined with projected high profits from
seabed mining.
All nations, whether they be land
locked or not, wish to take part in
seabed exploitation.4 It may be true that
the seabed is not inhabited by human
beings, but it is not true that in extend
ing their jurisdiction, coastal states
would simply be making use of empty
areas awaiting a master.5 Although
seabed mining threatens the interests
of only a small number of states, it has
become a group issue through the
linkage with world commodity policy.6
Mpazi Land-locked states and the UNCLOS regime (1993) 341.
Rembe Africa and the international law of the sea (1980) 74.
Ibid.
Childs ``The interests of land-locked states in the law of the seas'' (1972) 9 San Diego Law Review 701 701.
Franck, Baradei and Aron ``The new poor: land-locked, shelf-locked and other geographically
disadvantaged states'' (1974) 7 New York University Journal of International Law and Politics 33.
6 Ferreira ``The role of African states in the development of the law of the sea at the Third United Nations
Conference'' (1979) 7 Ocean Development and International Law 110.
1
2
3
4
5
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Codicillus XXXXIII Nr/No 2
The exploitation of the seabed's re
sources may provide an opportunity for
all nations to share in its wealth on an
equitable basis.7 Today, to varying de
grees, resources such as phosphorus
compounds, manganese, titanium, zir
cons, diamonds, iron, gold, tin, sulphur,
salt (sodium/chlorine), bromine, sand,
gravel and hydrocarbons are being taken
from the seabed.8 In terms of value, the
most important products are the hydro
carbon resources.9 There is every reason
to believe that the practice of seabed
extraction will increase tremendously
within the next few years.
It is trite to emphasise that African
land locked and geographically disad
vantaged states are likely to be adversely
affected by seabed mineral production.10
Many of the African land locked states
7
8
9
10
11
12
such as Botswana, Burundi, Rwanda,
Uganda and Zimbabwe produce, and
rely heavily on, export of minerals that
could also be mined from the seabed.11
2 The principle of the common
heritage of humankind
It is commonly accepted that those
waters outside national jurisdiction are
there to benefit all humankind, which
means that the resources of the seabed
should be the common heritage of all
humankind.12 The `common heritage of
humankind' principle means that the
seabed should be a global commons
open to all to graze upon. There is a
need for the establishment of rules to
govern the exploitation of this part of
the earth's resources, and the creation of
Mpazi supra n 1 342.
Fye, Maxwell and Emery, Ketchum ``Ocean science and marine relations'' (1968) Uses of the ocean 50 1
Childs supra 718
Rembe supra 75.
Ibid.
Childs supra 729.
69
institutions capable of acting on behalf
of humankind as a whole. The `common
heritage' idea also means that states, by
recognising one another as sovereign
equals, should constitute a society with
mutual rights and obligations embodied
in international law.13
It therefore excludes notions such as
res nullius or res communis.14 The African
land locked states also support the
principle of the common heritage of
humankind. This concept gives them
hope that their interests may be accom
modated. This ideal affords land locked
state an opportunity to obtain legally
recognised rights not available through
bilateral agreements with coastal
states.15 Activities connected with the
exploitation and exploration of the
seabed should also conform to existing
international law.
The first, and perhaps the most
difficult, problem to solve is the size of
the area which should come under the
authority of an international seabed
regime, from which the land locked
state may be expected to derive the most
long term benefits.16 The problem is the
approach to be used in defining the
breadth of the area of national jurisdic
tion. At present, there are three com
monly held approaches:
(1) Some propose an internationally
agreed upon vertical line drawn
through the air, sea and seabed,
separating the zone of national
sovereignty from the international
zone.17 It is said that such a line
would be relatively easy to locate,
mark on maps and administer.
(2) The present system allows each
state to determine its own sea
boundaries. This system does not
provide any satisfactory guideline
on seaward boundaries. This ap
proach places not only the land
locked state, but also geographically
disadvantaged states at a distinct
disadvantage, leaving only a rela
tively few states which, because of
history or geographical location, are
able to expand outward theoretically
to the median line of each ocean
basin.18
(3) Others argue for the establishment
of multiple boundary lines in the sea
by international agreement, with
national jurisdiction extending out
ward from the coast for varying
distances for various functions. In
essence, many African states seem
to support the view that all states
including land locked states should
be entitled to share in the income
from deep sea mining in the inter
national area.19
Glassner holds that:
The international seabed authority,
however constituted, will include
representatives of land locked states
and its mandate will somehow per
mit land locked states to derive some
material benefits from the develop
ment of the seabed resources.20
While, according to Friedman,
13 Roderick Ogley Internationalising the seabed (1984) 31 32.
14 Govindaraj ``Land-locked states: their right to the resources of the seabed and the ocean floor'' (1974) 12
Indian Journal of International Law 409 420.
15 Ferguson ``UNCLOS III: Last chance for land-locked states'' (1976 7) 14 San Diego Law Review 637.
16 Glassner ``Developing land-locked states and the resources of the seabed'' (1973 4) 11 San Diego Law
Review 633 636.
17 Ibid 637.
18 Ibid.
19 Ibid.
20 Glassner ``The status of developing land-locked states since 1965'' (1973) 5 Lawyers of the Americas 497.
70
[t]he land locked states are the only
group generally favouring a strong
seabed authority with extensive jur
isdiction, including revenue shar
ing.21
It should not be forgotten that, on the
basis of equality with coastal states, the
land locked and geographically disad
vantaged states must have an opportu
nity to participate actively themselves or
through licences in the exploration and
exploitation of the international seabed
area, notwithstanding that it may not be
feasible for most of them to do so for
some time to come.22
Developed states are currently attain
ing the level of technology necessary for
the commercial production of the seabed
minerals.23 Land locked states will,
however, not be able to undertake such
exploitation of the seabed and will not
receive any benefits from deep seabed
mining unless an internationally super
vised system of revenue sharing is
adopted.24
From as early as 1975, the African
land locked and geographically disad
vantaged states have sought to exploit
and explore the resources of the ocean.
For example, The Kampala Declaration
of 197125 makes provision for, inter alia,
that in the exploitation of the sea and
the seabed beyond the territorial sea,
`the rights and interests of all states,
coastal or land locked shall be taken
into account'26 and that `all rights which
the land locked and geographically dis
advantaged states have with regard to
such resources under existing interna
tional law shall be maintained'.27
21 Friedman ``Selden redivivus: towards a partition of the sea?'' (1975) 65 American Journal of International
Law 757 768.
22 Glassner supra 651.
23 Ferguson supra 645.
24 Ibid.
25 UN.Doc.A/CONF 62/23 3 Official Records of the United Nations Conference on the Law of the Sea 3
(1975).
26 Ibid par 8(a).
27 Ibid par 8(b).
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